Legal thoughts, since 2005.

This week's Daily Record column is entitled "New York Ethics Committee on Lawyers’ Use of Social Media During Trials."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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New York Ethics Committee on Lawyers’ Use of Social Media During Trials

Despite the rise in social media use by the general population, many lawyers continue to be reluctant to use social media to support their law practices. Nevertheless, widespread social media use is a phenomenon that is becoming increasingly difficult for lawyers to ignore, as social media issues repeatedly crop in their cases.

For example, in a December column I discussed two New York criminal cases which focused on whether contact via social media websites constitutes a crime and in a November column, I analyzed two New York civil cases which addressed the issue of lawyers mining social media sites for evidence.

Social media use is also affecting jury trials and one interesting issue that has arisen is whether it is ethically permissible for lawyers to investigate jurors’ use of social media during the pendency of a trial and what lawyers must do if misconduct is discovered. The New York County Lawyers’ Association Committee on Professional Ethics addressed that very issue in Formal Opinion No. 743.

At the outset, the Committee cited RPA 3.5, which prohibits contact with jurors during the pendency of trials. The Committee explained that pursuant to RPA 3.5 it is ethically permissible for attorneys to conduct research and follow a jurors’ social media interactions only if the jurors are unaware the monitoring. In other words, lawyers may only passively follow a juror’s public social media interactions and may not take any actions that would make the jurors aware of their efforts.

So that means lawyers must ensure that jurors receive no notifications regarding the monitoring, thus precluding them from making a “friend” request of an individual juror on Facebook, “following” a juror on Twitter (since Twitter users are notified of new followers), signing up for a juror’s blog’s RSS feed via an email subscription, or visiting a juror’s LinkedIn profile (since LinkedIn provides users with information regarding those who recently viewed their profile).

Another ethical issue that lawyers may encounter when monitoring jurors’ social media use is the discovery of juror misconduct. In that case, if a lawyer discovers that a juror has violated the court’s instructions through the use of social media, then RPC 3.5 requires that the lawyer immediately report the misconduct to the court.

Importantly, as the Committee explained, a lawyer may not use knowledge of the misconduct to benefit his or her client’s case: “Further, the lawyer who learns of improper juror deliberations may not use this information to benefit the lawyer's client in settlement negotiations, or even to inform the lawyer's settlement negotiations. The lawyer may not research a juror's social networking site, ascertain the status of improper juror deliberations and then accept a settlement offer based on that information, prior to notifying the court. Rather, the lawyer must "promptly" notify the court of the impropriety—i.e., before taking any further significant action on the case.”

The Committee also clarified that lawyers have no ethical obligation to monitor jurors’ social media activities, but should they choose to do so, must notify the court of any improprieties discovered.

Thus, the decision to monitor jurors’ social media use during trial is a strategic one and requires careful consideration prior to its implementation, since information discovered could result in a mistrial or otherwise disrupt the proceedings. Similarly, if you decide to track jurors’ online interactions, it is important to have a thorough understanding of the various social media platforms, lest you inadvertently violate your ethical obligations by triggering a notification or otherwise notifying a juror of your monitoring efforts.

In other words, the lesson to be learned from this ethics decision and the social media cases that I have written about in recent months is that, nowadays, in order to be an effective lawyer, it is important to have a full understanding of the major social media platforms, including your ethical obligations when using them, so that you can ascertain how their use may impact your client’s case. The failure to do so could arguably amount to malpractice.

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